2013-07-28

More from the spammer.

Mr Kennard

I could not have been more clear and succinct in
my email to you. Your persistence in this matter further highlights
your ineptitude.

However in an effort to humour you, and with a
view to prevent you attempting similar such actions as you have alluded
to, we would simply make reference to the very same document that you
refer too: “The Privacy and Electronic Communications
(EC Directive) Regulations 2003”, emails sent and received.

When read in context to your circumstances it
will, as has before been demonstrated before the court that your claim
is without foundation.

Your prior ability to solicit monies from others
is not indication of the validity of your case, nor as we have
demonstrated, would prior successes before the courts. It simply
demonstrates that the defended was either also poorly informed,
poorly represented or simply opted not to defend the matter and paid
you monies, simply to halt your pursuit.

I trust this will bring an end to the matter, and you will cease and desist.

Well, we have quite a big set of spammers that have been getting warnings now - I need to review which are the most likely to be sensible to take action and proceed and get some experience of how this works in court. I may have to fine tune the notices, and the logic of how we assess damages/costs as well. So it may not be this guy to start with, sorry.

However, if we stick at this, we should be able to get a formula that works - both in terms of making spammers realise that they are breaking the law in the first place, and in terms of getting actual court cases to prove it.

I need to find what costs one can include. I think there are limits on small claims, and the time spent doing the discussion and negotiation are not normally part of the costs. But I am not (yet) an expert.

Yeh, I assume so, I have. It is a shame his email does not actually say why he thinks he had not breached the regulations. If he is that confident then surely he must know the killer argument here - which clause I have somehow missed...

Anyway, what I replied is :-

On 27/07/2013 22:02, Darren Scott wrote:> > However in an effort to humour you, and with a view to prevent you> > attempting similar such actions as you have alluded to, we would simply> > make reference to the very same document that you refer too: “The> > Privacy and Electronic Communications (EC Directive) Regulations 2003”,> > emails sent and received.> >> > When read in context to your circumstances it will, as has before been demonstrated before the court that your claim is without foundation.

The context of my circumstances are that I have received an unsolicitedmarketing communications by email from you without having previouslygiven consent as per 22(2) and 22(3) of the regulations. That is abreach of the regulations, and section 30 allows me to take actionagainst you.

Your reply does not make any specific reference within the regulationsand does not really address the matter or explain how exactly you feelthat they do not apply.

So I am unclear how your reply is meant to progress this or avoid legalaction. What exactly are you saying?

22(1) states "This regulation applies to the transmission of unsolicitedcommunications by means of electronic mail to individual subscribers."

Are you suggesting that you did not transmit an unsolicitedcommunication? If so, show when I solicited it.

Are you suggesting that it was not an electronic email?

Are you suggesting that it was not transmitted to an individualsubscriber? I have the invoice for the email services and I am anindividual.

22(2) states "Except in the circumstances referred to in paragraph (3),a person shall neither transmit, nor instigate the transmission of,unsolicited communications for the purposes of direct marketing by meansof electronic mail unless the recipient of the electronic mail haspreviously notified the sender that he consents for the time being tosuch communications being sent by, or at the instigation of, the sender."

Are you saying I have previously notified you that I consent? If so -show that notification now.

Bear in mind that the regulations clearly require that recipient (me,and not someone else) has notified the sender (you, not some mailinglist provider) of consent.

Are you suggesting para (3) somehow applies?

22 3(a) states "(3) A person may send or instigate the sending ofelectronic mail for the purposes of direct marketing where (a)thatperson has obtained the contact details of the recipient of thatelectronic mail in the course of the sale or negotiations for the saleof a product or service to that recipient;"

Are you saying that I have been involved in the course of a sale ornegotiation with you? If so - provide copies of the correspondence onthat matter.

If you do not wish to resolve this matter by discussion and negotiation,as your lasts paragraph seems to suggest, then I see no reason not toproceed to a county court claim. If your defence is simply to say Ishould look at those regulations without any more details as to why youthink they do not apply, then that will not go well for you I am sure.

On 2013-07-28 20:01, Darren Scott wrote:> Mr Kennard,>> The points of disagreement are clear, you believe we were in breach, we> do not.

No, the points are not clear.

I have stated very clearly why you are in breach with detailed referenceto the sections of the regulations.

You have not given one reason why you consider that you are not.

> Given that your scam is not lawful, I have no issue with how our stance> may be considered by the court.

This is not a scam, it is my legal right as per section 30 of heregulations.

The regulations are clear that your actions are unlawful unless you meetsome specific points, such as consent, or obtaining the email by sale ornegotiation, etc.

These are all things which you could back up - you could provide detailsof when and how you believe consent was given, or when and how my emailaddress was obtained through sale or negotiation where I had a chance toopt-out.

You have failed to do so.

You have not provided one statement or fact or claim even that backs upyour assertion that you are not in breach of the regulations. Why?

> This will be my last response to your emails as I have a business to run.

In which case I have to conclude that you do not wish to continue withdiscussion and negotiation as alternate dispute resolution as per thepre-action conduct directions. I am sorry to hear that.

> May I suggest if you wish to make the matter litigious you do so. That> way you are incurring costs. We will then make representation before> the courts

You are expected by the courts to take reasonable steps to resolve thematter without resorting to the court.

You have refused to do so - you have not yet once indicated the reasonswhy you feel your actions are not in breach of the regulations. Yourrefusal to take steps to resolve the matter by discussion andnegotiation will not help your case as and when this matter goes to court.

So, once again, I ask: Exactly why do you believe your actions are notin breach of the regulations?

If, as you seem to believe, I have this wrong, and you are not inbreach, it would be a simpler matter for you to state why. It would be asimple matter, for example, for you to state when and how you believe Igave consent to the sending of your unsolicited marketing email.

If, somehow, I have missed some point of the regulations, perhaps insome other section, which excuses your actions, then state whichregulation and why.

If, as you say, you have a business to run and would rather not continuethese discussions, then that would be the prudent course of action - topoint out why exactly I am wrong, as that would indeed be the end of it.If I am wrong, I will leave you alone, and even apologise for hasslingyou. I am at a loss as to why you are not doing so - why not simplystate the reason now so that I have no case to continue? Why invitecourt action by being evasive and refusing to co-operate in discussionof the matter now?

Everything I write here is just my honest opinion and not a statement by my employer, etc, you get the idea. If you find any words or pictures menacing or offensive, or likely to impair your computer, or alarming or distressing, stop reading now and don't come back (and don't forget to block me on social media too). Nothing here is legal advice. Everything on this blog is without prejudice, just in case. Comments are moderated to weed out obvious spam, so do not appear instantly. You take responsibility for any comments you post. Always bookmark www.me.uk as I may change the URL blogger sees.

And please, if you don't like what I post, say so - comment - discuss...